187 A.D. 110 | N.Y. App. Div. | 1919
The plaintiff entered mto a contract to purchase a laundry from the defendant. At the time of the execution of the contract the plaintiff paid $2,500 on account of the purchase price. The sale was not consummated, and this action is brought to recover said $2,500 paid on account of the purchase price, and $500 expenses, which plaintiff claims it incurred by reason of said contract and the alleged failure of the defendant to perform the same. The action was tried before the court with a jury, and the jury rendered a verdict in favor of the plaintiff for $2,500, and from the judgment entered thereon and an order denying defendant’s motion to set the verdict aside and for a new trial the defendant appeals.
The plaintiff’s contention upon the trial was that it was ready, able and willing to perform; that it tendered the balance of the purchase price, demanded performance upon the part of the defendant and that the defendant failed or refused to perform. The defendant’s failure or refusal consisted of a failure to furnish an agreement not to engage in the laundry business in a certain locality during a limited period, signed by one Drucker, a stockholder and general manager of the defendant.
The testimony on behalf of the plaintiff as to tender is given by one witness only. He testifies that for the purpose of closing the title the plaintiff furnished him with a check for $4,500 and $1,000 in cash, and that at the time set for closing he attended at the place of closing. The contract in question provides for a payment of $5,400 to the defendant on the day of closing, and $500 to Charles Drucker before the delivery of the bill of sale. Therefore, if no deductions or allowances other than those provided in the contract are made, the amount which plaintiff’s witness took with him was insufficient to pay the balance of the amount to be paid
It is very doubtful from this testimony whether the witness offered the defendant any money at all, but it is clear that he did not offer the defendant any definite amount of money. This was insufficient to constitute a tender. If no deductions from the amount to be paid were made, the total amount in the possession of the witness was insufficient.
To constitute a valid tender it was necessary that the witness tender a specific amount. The amount must be produced and an actual and unequivocal offer of the same made to the other party. (28 Am. & Eng. Ency. of Law [2d ed.], 17, 27, 28; 38 Cyc. 137, 138; Eddy v. Davis, 116 N. Y. 251; Alpern v. Farrell, 133 App. Div. 278; Tuthill v. Morris, 81 N. Y. 94.) As the plaintiff neither offered a specific amount to the defend
The plaintiff’s witness testifies that he called the defendant’s attorney upon the telephone and asked him if a check would be accepted upon the closing, and says the defendant’s attorney informed him it would. This is denied by the defendant’s attorney, who was sworn as a witness. This presented a fair question of fact, and for the purposes of this inquiry it must be assumed that the jury found that plaintiff’s contention was correct in that respect. Upon the trial it was proved without contradiction that the plaintiff, on the day this title was to close, had in its bank account when the bank closed, $2,300.33. The day of closing was Saturday. The bank closed at twelve o’clock and the title was to close at two p. m. Therefore, the plaintiff had in the bank $2,300.33 to meet its check for $4,500. Assuming that the defendant agreed to accept a check, was the tender of this check and $1,000 in cash a tender? No decision directly upon this point has been called to the attention of the court, nor has quite an extended search revealed any. In Clifton v. Mackauf (87 Misc. Rep. 105) and Link v. Mack (25 id. 615) are expressions which indicate that a check without funds to meet it is of no value as a tender. In both instances these expressions are connected with statements as to keeping the account good. These expressions do not detract in any way from these cases as authorities to the effect that a check must be good at the time of its tender. In Clifton v. Mackauf (supra) it is said: “The defendant alleges tender to defeat the recovery of rent, but as the payment was sought to be made by check, and concededly the defendant did not keep her account good, and did not make her tender good previous
The defendant by agreeing to accept a check did not agree to accept a worthless check. At the time this check was offered it was absolutely worthless in so far as it would have
In Ziehen v. Smith (148 N. Y. 558) it was held that if the vendor of real estate under an executory contract is unable to perform on his part at the time provided by the contract, a formal tender and demand on the part of the vendee is not necessary in order to enable him to maintain an action to recover the money paid on the contract. Under the contract in suit, the defendant was to deliver at the time of closing “ an agreement signed by Herman Kraut, Charles Drucker and Samuel Hausman, wherein the said parties will agree not to engage in the wholesale steam power laundry business in the Greater City of New York for a period of two years from the date hereof.” It is conceded that Herman Kraut and Samuel Hausman executed this agreement, but the plaintiff contends that Charles Drucker declined to sign such an agreement and that the defendant was unable to deliver this agreement as called for by the contract. Upon the record, this presents the only question of fact in the case. The testimony is not clear that at any time the attorney who represented the defendant upon the closing said or conceded in any way that the defendant was unable to deliver this agreement. There is testimony, however, upon the part of the plaintiff to the effect that Drucker refused to sign and the jury may have been justified in finding that this refusal occurred in the presence of the attorney representing the plaintiff upon the closing. It is apparent that the defendant’s attorney had full and complete charge of the closing. If he
Upon the day of closing no officer of the plaintiff attended at the closing. The plaintiff was represented solely by its attorney. The resolution passed by the plaintiff in relation to the purchase of the defendant’s laundry does not authorize the attorney to close the contract. In fact, he is not mentioned in it. The secretary and general manager of the plaintiff is authorized to make the purchase upon the terms stated therein. The check which the plaintiff’s attorney claims he took with him was not taken from the plaintiff’s check book in regular order. It is claimed that this check was taken from the back of the book. No entry in relation to it was made Upon the stub. After the transaction fell through, it is claimed that this check was returned to the secretary and general manager and he claims to have destroyed it. These facts of themselves indicate quite strongly that the plaintiff did not attempt in good faith to close this transaction. It is now claimed that upon the closing plaintiff’s attorney waived every objection except the failure to furnish Drucker’s agreement. No authority to make such waiver, however, is shown. At the time of closing the plaintiff’s attorney dictated many pages of objections. It seems strange that he should have gone through this idle ceremony only to waive the objections the next moment. Plaintiff’s attorney is the only witness who testifies that the defendant was unable to deliver the agreement signed by Drucker. One other witness testifies that he sat in a chair in an outer room and at one time during the afternoon he heard Drucker say, “ I wouldn’t sign, I wouldn’t sign,” and then Drucker went back into the private office. Some other parts of his testimony indicate that he was testifying to another interview. Assuming, however,
The judgment and order denying the motion for a new trial should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Mills and Putnam, JJ., concurred; Kelly, J., concurred in the result.
.Judgment and order denying motion for new trial reversed and new trial granted, costs to abide the event.